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New York Appellate Practice

Name: New York Appellate Practice
Brand: Matthew Bender Elite Products

Author(s): David M. Abbatoy, Jr. (Author), A. Vincent Buzard (Author), Allison B. Fiut (Author), Brian D. Ginsberg (Author), Kyle D. Gooch (Author), Svetlana K. Ivy (Author), Thomas R. Newman (Original Author) (Author), Laura W. Smalley (Author)

Expert analysis of the law, with invaluable strategic advicefor effectively handling any case before New York State appellate courts.

Publisher: Matthew Bender Elite Products

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Product Description

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Selected by the American Academy of Appellate Lawyers as recommended reading for appellate specialists, New York Appellate Practice is a complete, one-stop guide to handling any appeal before a New York Court. It provides detailed coverage of each step in the appellate process, including:

• Preserving errors for appeal
• Taking and perfecting the appeal
• Preparing an appellate brief
• Arguing the appeal

You'll get detailed information about appellate practice in the Appellate Division departments and the New York Court of Appeals.

New York Appellate Practice gives you critical information about appeals in specific types of cases, including criminal appeals, appeals from administrative proceedings, and matrimonial appeals. In addition to legal analysis and practical guidance, New York Appellate Practice includes appellate practice forms and court rules for the Appellate Divisions and Appellate Terms.

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Table of Contents

CHAPTER 1. Organization of the New York Appellate Courts
§ 1.01 Right of Appeal Generally
§ 1.02 Overview of New York Appellate Courts
§ 1.03 Appeals to the Appellate Terms and County Court
§ 1.04 Appeals to the Appellate Division
§ 1.05 Appeals to the Court of Appeals
Appendix 1A Internal Operating Procedures of the Appellate Division, First Department
Appendix 1B Practice in the Appellate Division, Second Department
Appendix 1C The Decision-Making Process in the Appellate Division, Third Department
Appendix 1D The Decision-Making Process in the Appellate Division, Fourth Department

CHAPTER 2. Preservation of Error for Review
§ 2.01 Introduction
§ 2.02 Preserving Issues for Appellate Review--Generally
§ 2.03 Pretrial Steps for Preserving Issues for Appeal
§ 2.04 Preserving Error on Requests for Court Action and Objections to Court Rulings
§ 2.05 Protecting Record During and Immediately After Trial
§ 2.06 Preserving Error When Taking and Perfecting Appeal
§ 2.07 Appellate Division's "Interest of Justice" Jurisdiction
§ 2.08 Appellate Division's Limited Power to Grant Relief to Nonappealing Party
§ 2.09 Exception to Preservation Requirement in Criminal Cases

CHAPTER 3. Threshold Jurisdictional Considerations
§ 3.01 Permissible Appellants--Parties Aggrieved
§ 3.02 Nonparties' Right to Appeal
§ 3.03 Prevailing Parties' Right to Appeal
§ 3.04 Appealable Paper
§ 3.05 Default Judgments and Orders
§ 3.06 Orders Involving Co-Defendants
§ 3.07 Orders Granting Partial Relief
§ 3.08 Orders Entered on Consent
§ 3.09 Review of Determinations by the Commission on Judicial Conduct
§ 3.10 Jurisdiction in Cases Involving Sexual Misconduct
§ 3.11 Miscellaneous Nonappealable Orders
§ 3.12 Finality and Appeals
§ 3.13 Sanctions--Appeal as of Right
§ 3.14 Orders Followed by a Judgment
§ 3.15 The Right to an Appealable Order From an Individual Assignment System (IAS)
§ 3.16 Appellate Treatment of Academic and Moot Questions
§ 3.17 Certified Questions to the Court of Appeals
§ 3.18 Interest of Justice Jurisdiction and Administrative Penalty

CHAPTER 4. Scope of Review
§ 4.01 Statutory Basis for the Scope of Review
§ 4.02 Orders Brought Up for Review
§ 4.03 Appeals Concerning Weight and Sufficiency of Evidence
§ 4.04 Review of Orders Setting Aside Jury Verdicts
§ 4.05 Review of Discretionary Determinations
§ 4.06 Review of Inconsistent Verdicts
§ 4.07 Review of General Verdicts Based on Multiple Theories of Liability
§ 4.08 Credibility and Conflicting Proof
§ 4.09 Review of Dismissal; for Failure to State a Cause of Action; on Opening; at Trial
§ 4.10 Review of Damage Awards in Personal Injury Actions
§ 4.11 Court of Appeals Will Not Review Class Action Orders Until After the Case is Final or Unless Permission to Appeal is Granted
§ 4.12 Judicial Review of Arbitration Awards
§ 4.13 Court of Appeals' Review of Questions of Fact
§ 4.13a Court of Appeals' Review of the Determinations of the Commission on Judicial Conduct
§ 4.14 Review of Administrative Agency Determinations
§ 4.14a Judicial Review of Determinations of Residential Cooperatives
§ 4.15 Harmless Error
§ 4.16 Appellate Review of Ex Parte Orders
§ 4.16a Review of Sua Sponte Orders
§ 4.17 Miscellaneous Limitations on the Courts' Power of Review
§ 4.18 Review of Small Claim and Commercial Claim Judgments

CHAPTER 5. Taking and Perfecting the Appeal
§ 5.01 In General
§ 5.02 Notice of Appeal
§ 5.03 Preparation of Record on Appeal
§ 5.04 Contents of Record on Appeal
§ 5.05
Appendix Method
§ 5.06 Agreed Statement of Facts
§ 5.07 Exhibits
§ 5.08 Cross-Appeals
§ 5.09 Reducing Appellate Costs; Poor Person Relief
§ 5.10 Costs on Appeal
§ 5.11 Imposition of Monetary Sanctions for Vexatious and Frivolous Appeals
§ 5.12 Fee for Filing Record on Appeal
§ 5.13 Time Limitations; Dismissals for Failure to Prosecute
§ 5.14 Length of Briefs
§ 5.15 Calendar Practice
§ 5.16 Preferences
§ 5.17 Preargument Conferences

CHAPTER 6. Stays Pending Appeal
§ 6.01 Stays Pending Appeal, Generally
§ 6.02 Stays Without Court Order (Automatic Stays)
§ 6.03 Actions Defended by Insurance Carriers
§ 6.04 Stays by Court Order
§ 6.05 Continuation of Stays Through Subsequent Appeals
§ 6.06 Proceedings Below During Stay

CHAPTER 7. Preparation of the Appellate Brief
§ 7.01 Technical Requirements of the Brief
§ 7.02 Preliminary Considerations in Preparing the Brief
§ 7.03 Suggestions for Writing the Brief
§ 7.04 Content of the Brief
§ 7.05 The Legal Argument
§ 7.06 The Respondent's Brief
§ 7.07 Reply Briefs
§ 7.08 Sur-Reply and Postargument Communications
§ 7.09 Amicus Curiae Briefs
Appendix 7A Language and Legal Drafting Bibliography

CHAPTER 8. Argument of the Appeal
§ 8.01 The Importance of Oral Argument
§ 8.02 Preserving the Right to Argue
§ 8.03 Time Allowed for Argument
§ 8.04 Who Should Argue?
§ 8.05 Preparation for the Argument
§ 8.06 Presentation and Substance of the Argument
§ 8.07 Respondent's Argument
§ 8.08 Rebuttal Argument
§ 8.09 Post-Argument Submissions

CHAPTER 9. Disposition of the Appeal
§ 9.01 In General
§ 9.02 Appellate Division
§ 9.03 Grant of Relief to Nonappealing Party
§ 9.04 Obtaining Relief as Respondent Without Cross Appealing
§ 9.04a Review of Authority of Referees
§ 9.05 Court of Appeals
§ 9.06 Death of Party Before and During Pendency of Appeal
§ 9.07 Awarding Costs
§ 9.08 Restitution
§ 9.09 Compliance With Appellate Court Orders
§ 9.10 Opinions and Other Writings
§ 9.11 Postargument Games Counsel Play
§ 9.12 Review of Administrative Determinations
§ 9.13 Determinations Without Formal Briefing and Argument
§ 9.14 Preservation

CHAPTER 10. Motions for Reargument
§ 10.01 In General
§ 10.02 The Movant's Burden
§ 10.03 What May Be Considered
§ 10.04 Procedural Requirements
§ 10.05 Opposing the Motion
§ 10.06 Disposition

CHAPTER 11. Court of Appeals Practice
§ 11.01 Introduction
§ 11.02 The Finality Requirement for Review by the Court of Appeals
§ 11.03 Appeals as of Right: CPLR 5601
§ 11.04 Motions for Leave to Appeal (Civil Cases)
§ 11.05 Appeals on Certified Questions
§ 11.06 Review of Determinations of State Commission on Judicial Conduct
§ 11.07 Expedited Consideration of Appeal
§ 11.08 Assigning and Deciding Cases
§ 11.09 Motions to Amend Remittitur
§ 11.10 Discretionary Proceedings to Review Certified Questions from Federal Courts and Other Courts of Last Resort

CHAPTER 11A. Court of Appeals Rules of Practice
§ 11A.01 Introduction
§ 11A.02 "Requirements Applicable to All Filings"
§ 11A.03 "Appeals"
§ 11A.04 Rule 500.20--"Criminal Leave Applications"
§ 11A.05 Motions
§ 11A.06 Rule 500.26--"Primary Election Session Procedures"
§ 11A.07 Rule 500.27--"Certified Questions"

CHAPTER 12. Appellate Term Practice
§ 12.01 Introduction
§ 12.02 Civil Appeals
§ 12.03 Automatic Dismissal of Appeals
§ 12.04 Motion Practice
§ 12.05 Criminal Appeals
§ 12.06 Bringing the Appeal on for Argument and Automatic Dismissal of Appeals in Criminal Cases
§ 12.07 Stays of Judgment Pending Appeal in Criminal Cases
§ 12.08 Leave to Appeal to the Court of Appeals in Criminal Cases
Appendix A Appendix of Forms
Appendix B NYS Constitution, Article VI
Appendix C CPLR Articles--Appeals
Appendix D COURT RULES
Appendix E Criminal Procedure Law

CHAPTER 13. Criminal Appeals
§ 13.01 Appealability
§ 13.02 Obligations of Counsel
§ 13.03 A Defendant's Risks in Appealing
§ 13.04 Taking the Appeal
§ 13.05 Stays and Bail Pending Appeal
§ 13.06 Perfecting the Appeal
§ 13.07 Motion Practice
§ 13.08 Scope and Standards of Review
§ 13.09 Disposition on Appeal
§ 13.10 Post-Conviction Relief
§ 13.11 Brief Writing
§ 13.12 Appeals in Capital Cases

CHAPTER 14. [Reserved]

CHAPTER 15. Appeals from Administrative Proceedings Under Article 78 of the CPLR
§ 15.01 Introduction
§ 15.02 When to Bring Proceeding Under Article
§ 15.03 Bringing Appeal of Administrative Decision Under Article
§ 15.04 Pleadings
§ 15.05 Undertakings
§ 15.06 Stays
§ 15.07 Trials of Issues of Fact
§ 15.08 Transfer to Appellate Division
§ 15.09 Perfecting the Proceeding
§ 15.10 Briefs
§ 15.11 Perfection
§ 15.12 Standards of Review
§ 15.13 Judgment
§ 15.14 Additional Considerations
Appendix 15A Forms

CHAPTER 16. [Reserved]

CHAPTER 17. Special Considerations in Matrimonial Appeals
§ 17.01 Introduction
§ 17.02 Appeal From Decisions on Pretrial Motions
§ 17.03 Stay Relief
§ 17.04 Other Motions to Be Made in Connection With Appeals
§ 17.05 Perfecting the Appeal
§ 17.06 Motions Addressed to Appellant's Record or Appendix and Brief
§ 17.07 Submission or Argument
§ 17.08 Oral Argument
§ 17.09 Motions and Applications Relating to Calendaring
§ 17.10 Questions Relating to Disposition
§ 17.11 Appeals to the Court of Appeals--In General
§ 17.12 Perfecting Appeals in the Court of Appeals
§ 17.13 Remands
§ 17.14 Appeals Involving Child Support
§ 17.15 Full Faith and Credit

Featured Authors

A. Vincent Buzard Laura W. Smalley Thomas R. Newman (Original Author) Kyle D. Gooch Allison B. Fiut Svetlana K. Ivy Brian D. Ginsberg David M. Abbatoy, Jr.

A. Vincent Buzard

A. Vincent Buzard is a retired partner and of counsel at Harris Beach PLLC, which is a statewide law firm with offices throughout New York State as well as in New Jersey, Connecticut and Washington, D.C. Mr. Buzard has been selected as one of the Best Lawyers in America in appellate practice New York Super Lawyers in appellate practice. He was selected as the 2014 Appellate Lawyer of the Year in the Rochester area by Best Lawyers in America, and was one of only two so named in New York state. Mr. Buzard has been a trial and appellate lawyer for over forty years and for the last several years has focused his practice on appeals in the state and federal courts of New York including the New York Court of Appeals. He has argued appeals involving a broad range of issues and his recent cases include successfully arguing in the Second Circuit Court of Appeals a seminal case for the constitutionality of a wage freeze on municipal employees; in the New York Court of Appeals for a new rule in tortious interference cases, for a rule regarding out of wedlock children in trusts and for the construction of a statute to prohibit the accrual of steps and increases during a wage freeze; and in the Appellate Division Fourth Department for a property tax assessment of zero for a large commercial property because of contamination which was the first such result in New York.

Mr. Buzard has written and lectured extensively on appellate practice for the American Bar Association, the New York Bar Association and the Monroe County Bar Association. He previously served as Chair and Secretary of the Council of Appellate Lawyers of the American Bar Association. In 2015, he was elected to represent the state of New York on the American Bar Association’s Board of Governors. He is a member of the House of Delegates of the New York State Bar Association.

He served as the President of the New York State Bar Association from 2005–2006 and as President of the Monroe County Bar Association from 1993–1994, from which he received the Adolph J. Rodenbeck Award for outstanding contribution to the legal profession and community.

He is a past Chair and current member of the State Bar Association Committee to Review Judicial Nominations which screens judges for appointment to the Court of Appeals, and serves by appointment on the Governor’s Screening Committee which screens judges for the Appellate Division, Fourth Department. He was appointed the Chief Judge of New York to chair the Seventh District Judicial Screening Commission which screened judicial candidates for election.

He also served as Corporation Counsel of the City of Rochester. Since the late 1970’s he has been a host, moderator and commentator on local radio and television programs on legal and political issues.

Mr. Buzard is a graduate of Wabash College and a cum laude graduate of the University of Michigan Law School.

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Laura W. Smalley

Laura W. Smalley is a member of the firm and practices in the Business & Commercial Litigation, Intellectual Property, and Appellate Litigation & Advocacy Practice Groups. Ms. Smalley handles appeals in both New York State and federal appellate courts. She holds a J.D., magna cum laude, from Cornell Law School. She was an editor on the Cornell Law Review.

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Thomas R. Newman (Original Author)

Thomas R. Newman (Original Author), Duane Morris LLP, Of Counsel, Member of the New York Bar

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Kyle D. Gooch

Kyle D. Gooch is a partner at Harris Beach PLLC and practices in the firm’s Business & Commercial Litigation and Appellate Litigation & Advocacy practice groups. Mr. Gooch handles commercial litigation and appeals in New York state and federal appellate courts. He holds a J.D. from Georgetown University Law Center. For more detailed biographical information, see www.harrisbeach.com/.

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Allison B. Fiut

Allison B. Fiut is a civil litigator who focuses her practice on resolving a range of commercial disputes in New York state and federal courts and through alternative dispute resolution. She represents clients in business divorce, breach of contract, non-compete, and trade secret misappropriation matters; as well as shareholder, commercial lease, real estate title, environmental contamination, and tax disputes. Allison also handles CPLR Article 78 proceedings, including reviews under the New York State Environmental Quality Review Act (SEQRA). She has significant appellate litigation experience in New York state and federal appellate courts, having briefed and argued appeals on a wide range of issues. For more detailed biographical information, see www.harrisbeach.com.

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Svetlana K. Ivy

Svetlana K. Ivy is a member of Harris Beach PLLC. She is the Leader of the firm’s Appellate Litigation & Advocacy Practice Group and is part of the Business & Commercial Litigation Practice Groups. Ms. Ivy has briefed and argued cases in every state appellate court in New York and has handled appeals in a wide range of cases in numerous industries, including financial services, energy, healthcare, and toxic torts. She routinely works with other practice groups at Harris Beach when cases reach to the appellate stage and provides consulting services to practitioners in other firms, particularly when they are seeking leave to appeal to the New York Court of Appeals. Ms. Ivy holds a J.D. from the William & Mary Law School, where she served on the William & Mary Law Review. For complete biographical information, including representative cases, see www.harrisbeach.com/.

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Brian D. Ginsberg

Brian D. Ginsberg is a partner in Harris Beach PLLC’s Appellate Litigation & Advocacy Practice Group, where he leads appeals and related matters spanning a broad spectrum of industries and legal issues in federal and state courts across New York and across the country. He has handled hundreds of appeals and has personally argued 90, including 21 in the U.S. Court of Appeals for the Second Circuit and seven in the New York State Court of Appeals. Earlier in his career, Mr. Ginsberg served as a law clerk to Chief Judge Michael A. Chagares of the U.S. Court of Appeals for the Third Circuit. Mr. Ginsberg holds a J.D. from Columbia Law School, where he was named a Harlan Fiske Stone scholar, as well as a B.S. and M.S. in mathematics from Yale University. His biography may be viewed at www.harrisbeach.com/.

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David M. Abbatoy, Jr.

David M. Abbatoy, Jr. concentrates his practice exclusively in appeals and post-verdict litigation in state and federal courts. He has litigated appeals at the Second Circuit Court of Appeals, the New York State Court of Appeals, and in every Appellate Division in the State of New York. David served as the chairperson of the Training and Qualification Committee for the Indigent Legal Services’ Committee to Improve Appellate representation, and assisted in drafting the statewide best-practice standards for appellate attorneys in criminal cases. He is a frequent lecturer regarding the use of scientific evidence in criminal trials. For more complete biographical information, see www.harrisbeach.com/.

View All Books by David M. Abbatoy, Jr. (1)

New York Appellate Practice

Featured Authors

A. Vincent Buzard

Laura W. Smalley

Thomas R. Newman (Original Author)

Kyle D. Gooch

Allison B. Fiut

Svetlana K. Ivy

Brian D. Ginsberg

David M. Abbatoy, Jr.

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